Monday, January 23, 2012

Alabama's Need for a New Constitution

The following article is from Karlos Finley who currently serves on the Board for Alabama Citizens for Constitutional Reform

(News from the Constitution Revision Commission)It's hard to find any reasonable person who'll make a serious defense of Alabama's decrepit Constitution. It's the longest in the world, it has been amended more than 850 times, it centers most all the power in the state in special-interest-controlled Montgomery and binds local governments.

For some time, The Alabama Citizens for Constitutional Reform has lobbied for some action, any action, to bring the state’s complex, cumbersome Constitution under control. Their preferred method to do so is a popularly elected constitutional convention. This was how the 1901 Constitution was created in the first place. Opponents of this plan claimed an election would lead to special interests taking over the convention and, thus, writing the new constitution. But it should be noted that it was not so much fear that special interests would dominate the convention. Instead, it was fear by some special interests that interests other than their own would prevail. That gets us to the first fundamental point about constitutional reform that we must understand. The state Constitution protects a wide range of special interests, so it stands to reason that special interests from agriculture to education would be wary of changes they could not control. Those changes would be in the state’s antiquated, inadequate and regressive system of raising revenue. Propertied interests would not want changes in the way the state taxes property. Education interests would not want changes in the way revenue is divided.Enter the state Legislature and the 16-member Constitutional Revision (not reform) Commission.

And, to make sure the commission does not tamper with what is really wrong with the Constitution, tax reform is off the table. So, why bother? Because there is more wrong with the Constitution than taxes. Although business groups, like other special interests, opposed a constitutional convention, they also understood that matters such as local control and decentralization needed to be addressed. So they threw their support behind the commission plan that is in place today. Despite the limitations placed on it, the Constitutional Revision Commission is a step in the right direction. The commission will rewrite 11 of the constitution's 18 articles to put before the Legislature and voters. It leaves untouched the taxation article, which includes limits born of the 1901 convention that keeps a lid on property taxes. Those provisions contribute mightily to Alabama having one of the nation's most unjust tax systems.Federal Judge Lynwood Smith wrote in his 854-page ruling that Alabama's property tax system does not violate the U.S. Constitution, however Smith practically begs for a federal lawsuit that challenges the validity of the Alabama Constitution because, as has been well-documented, supporters stole the referendum that approved it. The 1901 Constitution is the state's fundamental charter, "only through fraud, ballot theft, economic and physical intimidation and unmitigated corruption," Smith wrote.

In an October Revision Commission meeting Mobile Republican Sen. Ben Brooks, a commission member, wondered whether Jefferson County could have avoided its crisis with "more liberal home rules," the ability of Alabama cities and counties to have limited autonomy to pass laws without needing the approval of the Legislature. Sonny Brasfield, Executive Director of the Association of County Commissions of Alabama, told him the fight over the county's occupational tax showed how hard it is for counties to solve problems on their own. "I think that if the Jefferson County Commission had more authority, they wouldn't have to be up here seeking an answer to the problem," Brasfield said. Some, including lawmakers, have portrayed Jefferson County as a poster child for why counties don't need any more power. The way the constitution reads currently, we can't amend local laws once they get advertised.. We can't debate a bill, find a middle ground, and can't improve it as the legislative process goes along. Brasfield said the system fosters horrible local laws. Jefferson County found out the hard way what happens when the Legislature bucks the process. In 2009, lawmakers passed a new county occupational tax to replace one that courts had ruled invalid. But it, too, was struck down because lawmakers changed the bill from what had been advertised. Finding a better way for local elected officials to make local decisions... not arguing over taxing authority, should be the focus of the revision commission's work, Brasfield said. "I don't want us to get distracted from reaching the conclusion we need, which is change," he said. The local government and its voters would decide which option for change they prefer. What shouldn't be an option is the current silliness. Argue, if you will, that Jefferson County having mucked up so badly makes it the perfect case against home rule. But fixing that mess is the perfect case for it. As Commissioner Brasfield points out, "Does it make sense that the Alabama Legislature has to be called into special session to deal with Jefferson County's financial problems? Should senators have to come from Mobile and Huntsville to Montgomery to work on a solution for Jefferson County?

Alabama's Constitution Revision Commission met Wednesday, January 18, 2012 for the last time before the 2012 legislative session to discuss home rule; while proposals were discussed to give local governments new powers. Brasfield presented the commission with five recommendations for county government. Craig Baab, a senior fellow with Alabama Appleseed, proposed giving counties limited home rule, with an option for counties to opt out or to repeal it. Baab said the centralized government created by the 1901 constitution "doesn't serve the people well." Any changes proposed by the commission would be submitted to the Legislature in the form of constitutional amendments. Should the Legislature approve the changes, the amendments would be submitted to voters for approval.

The proposals, however, drew strong criticism from several people who spoke at the meeting. Supporters of home rule were equally adamant that zoning power would allow counties to guide their development and protect property owners from potentially ruinous neighbors. The commission is reviewing 11 of the 16 articles of Alabama's 1901 Constitution. The commission will not address Article XI, which addresses taxation. The commission late last year approved changes to remove the racist language and changes to the banking and corporations articles. The Legislature should consider those proposals during the next regular session.

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Boteler, Finley & Wolfe, Attorneys

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